Citation Nr: 0635543
Decision Date: 11/15/06 Archive Date: 11/28/06
DOCKET NO. 04-10 145 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Fort
Harrison, Montana
THE ISSUE
Eligibility for VA healthcare.
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The veteran served on active duty from May 1951 to March
1953.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a December 2003 decision of the Fort
Harrison, Montana, Department of Veterans Affairs Medical
Center (VAMC).
FINDINGS OF FACT
1. The veteran's application for enrollment in the VA health
care system was received in November 2003 and he reported
income in excess of $35, 000.
2. The veteran was assigned to Priority Group 8.
3. The veteran does not have a service-connected disability
or special eligibility attributes that qualify him for an
improved group enrollment, and he failed to report for a VA
examination to ascertain entitlement to Priority Group 4
enrollment.
CONCLUSION OF LAW
The criteria for enrollment in and access to VA medical care
benefits have not been met. 38 U.S.C.A. §§ 1705, 1706 (West
2002); 38 C.F.R. § 17.36 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Before assessing the merits of the appeal, the Board must
examine VA's duties under the Veterans Claims Assistance Act
of 2000 (VCAA). The VCAA directs that VA shall apprise a
claimant of the evidence necessary to substantiate his/her
claim for benefits and make reasonable efforts to assist the
claimant in obtaining evidence unless there is no reasonable
possibility that such assistance will aid in substantiating
the claim. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §
3.159. The VCAA is not applicable to cases in which the law,
and not the factual evidence, is dispositive. See Manning v.
Principi, 16 Vet. App. 534, 542-43 (2002). As this case
concerns a legal determination of eligibility to VA medical
care under VA regulations, the provisions of the VCAA are not
applicable. Notwithstanding, we observe that the VAMC issued
the appellant a VCAA letter in December 2003, prior to the
initial adverse action on the application, that set out the
respective duties of VA and the veteran regarding his claim.
The veteran contends that VA erred in its decision to deny
him enrollment in the VA health care system based on his
assignment to Priority Group 8. The veteran argues that he
is entitled to VA health care because he had a stroke and
cannot walk without the use of a walker, and he will soon no
longer receive 401K retirement plan benefits.
Generally, a veteran must be enrolled in the VA healthcare
system as a condition for receiving medical benefits. See 38
C.F.R. § 17.36(a). Veterans may apply for enrollment in the
VA health care system at any time; enrollment is initiated by
submitting a completed VA application for health benefits to
a VA medical facility. See 38 C.F.R. § 17.36 (d).
Veterans are eligible for enrollment based on enumerated
priorities, and veterans who do not have service-connected
disabilities and are above a certain income threshold are
assigned the lowest priority, designated as Priority Group 8.
See 38 C.F.R. § 17.36(b). In January 2003, VA suspended new
enrollment of veterans assigned to Priority Group 8 from the
VA health care system if they were not enrolled on January
17, 2003. See 38 C.F.R. § 17.36(c)(2). See also 38 U.S.C.A.
§ 1705(a) (stating that, in managing medical services, VA
shall design programs in a manner as to promote cost-
effective delivery of health care services); 68 Fed. Reg.
2670-673 (Jan. 17, 2003) (regarding the Secretary's decision
to restrict enrollment to veterans in Priority Group 8 not
already enrolled as of January 17, 2003 in light of VA's
limited resources).
In this case, the veteran applied for benefits in November
2003. His reported income was over $35,000 annually. In
December 2003, the VAMC notified the veteran that he was
assigned to Priority Group 8 because his application was
received after the January 2003 deadline, he had no service-
connected disability, and his income was greater than
permitted under national means test. At this time, the
veteran was notified that veterans determined to be
catastrophically disabled were placed in Priority Group 4.
Consistent with the terms of the March 2006 Board remand,
which requested that the VAMC consider eligibility based on
catastrophic disability, the VAMC scheduled the veteran for
an examination in June 2006. There is a notation in the
record that the veteran failed to report for this
examination. No subsequent correspondence has been received
and the VAMC denied eligibility for VA health care based on
catastrophic criteria. The veteran was notified of this
action.
The evidence of record shows that the veteran filed his
application for VA health care after the January 17, 2003
enrollment deadline, that he has no service-connected
disability, and that his annual income exceeds the national
means test. Also, competent evidence showing that the
veteran has catastrophic disability has not been presented.
VA has attempted to assist the veteran in establishing
eligibility under these criteria, but he failed to show for a
scheduled VA examination or provide other evidence supporting
the presence of catastrophic disability. Additionally, we
note that the veteran is not a former prisoner of war.
Therefore, the Board finds that the veteran does not meet the
eligibility criteria for VA health care at this time.
The Board regrets that limited resources restrict VA's
capacity to provide care to all veterans; however, the
regulations were amended to protect the quality of care for
other enrollees who have lower incomes, special medical
needs, or disabilities incurred during military service.
ORDER
Eligibility for VA healthcare is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs